147 N.E. 323 | Ind. | 1925
Appellant was convicted of an alleged violation of the Prohibition Law. Overruling his motion for a new trial is assigned as error. The affidavit on which the prosecution was based alleged that on May 14, 1923, at Franklin county, Indiana, appellant "did then and there unlawfully keep and have in his possession intoxicating liquor with intent then and there to give away, furnish and otherwise dispose of said intoxicating liquor to E.K. and * * * did unlawfully give away, furnish and otherwise dispose of intoxicating liquor to E.K. contrary," etc. The undisputed evidence was that four persons went up into a darkened room, on the second floor of an office building, and looking from its windows watched appellant in conference with E.K. in his law office directly across the street; that there were curtains of some white material (not lace) at appellant's windows, but when the lights were turned on in his room and it was dark outside the watchers could see appellant and E.K.; that appellant took a bottle out of a drawer in his desk, poured out some liquid and drank it, and that he offered some to his companion. But the evidence was in conflict on the question whether or not E.K. drank any of the liquid. Two of the witnesses for the state testified only to seeing appellant drink and then offer some to his companion, but did not say that the latter accepted and drank it; and E.K. and appellant both testified that a small quantity was poured out for his inspection, and *140 that after having smelled of it he poured it into the spittoon, and that he did not drink any; while two other witnesses for the state testified that they saw E.K. refuse once, but that a few minutes before such refusal they had seen him drink from a glass into which appellant had poured something from the bottle. A search warrant being obtained, a bottle was found in appellant's desk containing what witnesses said was "moonshine whisky," and this bottle and its contents were introduced in evidence. And appellant admitted on the witness stand that his bottle contained "moonshine."
The giving of each of certain instructions and the refusal to give each of certain others is complained of. As applied to the foregoing evidence the trial court gave an instruction that set out the language of the affidavit, quoted above, including the charge that appellant "kept and had in his possession intoxicating liquor with intent to give away," etc., and told the jury they might take the affidavit to the jury room. And it also gave one which recited the statute, 200 words long, on which the prosecution was based, beginning with the words (our italics) "It shall be unlawful for any person to manufacture, transport,possess, sell, barter, exchange, give away, furnish orotherwise dispose of intoxicating liquor, except as in this act provided." § 1, Acts 1923 p. 70. And gave another which contained the following language: "The questions for you to determine are as follows: Did the defendant Milford P. Hubbard, have possession of this liquor as alleged in the affidavit? And did he give to E.K. or otherwise dispose of to E.K. any such liquor?" And notwithstanding the defendant duly and properly requested that an instruction (No. 2) be given which set out that part of the statute declaring it unlawful to manufacture, transport, 1. possess, sell, barter, exchange, give away, furnish or otherwise dispose of intoxicating liquor, *141
and continued: "I further instruct you that said act does not make the mere possession of intoxicating liquor unlawful; and if you find from the evidence introduced in this cause, that on the 14th day of May, 1923, the defendant did have in his possession intoxicating liquor, and you do find from the evidence that he drank some of the same, and you further find that he did not give any of said intoxicating liquor to E.K., as alleged in the affidavit herein, then I instruct you that your verdict should be for the defendant," the court refused to give such instruction. Mere possession of intoxicating liquor whether with or without an intent to give it away was not a public offense at any time in 1923, after the statute under which appellant was 2. prosecuted took effect on February 26. Smith v. State
(1924),
But the instructions given were so framed as to carry an intimation that proof of such possession with the intent charged would justify a finding of guilty, and no instruction expressly declaring the contrary was given.
A number of the instructions given clearly intimated that the appellant might be found guilty if the jury found that he "furnished" intoxicating liquor to E.K., while at the same time the court refused to instruct that the verdict should be for the defendant if the jury found that he "did not give any 3. intoxicating liquor to E.K." The expression to "furnish" intoxicating liquor to another, as used in the statute, means to supply it for his use. Banks v. State (1919),
The court also gave an instruction (No. 4) stating that moonshine whisky is an intoxicating liquor, that "in this case certain liquid called moonshine whisky has been offered in 5. evidence," and then referring to "this whisky," "this liquor," and twice to "such liquor," in propounding the question to be decided by the jury and in stating what must be proved in order to convict. This invaded the province of the jury, amounting to an instruction that the liquor introduced in evidence was the same which witnesses testified they saw appellant giving away, and that it was intoxicating. In giving instructions the court should not assume that any material 6. fact in issue has been established by the evidence, the jury being the sole judges of the facts proved. Michael v.State (1912),
The court gave an instruction (No. 5) which told the jury that some evidence had been introduced of difficulty and hard feeling between the defendant and certain witnesses for the state, 7. but that the jury were not trying who was right in the matter, and continued: "This evidence is admitted for the *143 purpose of showing any bias, prejudice or feeling that may exist between the defendant and the witnesses who have testified, and can be considered by you along with all the other evidence in this cause to aid you in arriving at the truth." This was error. The evidence referred to was only competent on the question of the credibility of witnesses shown to be affected by such ill feeling, and the weight of their testimony.
The ill feeling of witnesses toward appellant could have no bearing on the truth or falsity of the charges against him, as related to the question of his guilt or innocence. And such an instruction to consider evidence that ill feeling existed between the defendant and certain witnesses, along with all the other evidence, to aid in arriving at the truth, was misleading.Monongahela River, etc., Co. v. Hardsaw (1907),
After instructing the jury that they had the right, under the Constitution, to determine the law as well as the facts in the case, the court continued as follows (No. 13): 8. "Notwithstanding you have the legal right to disagree with the court as to what the law is, still you should weigh the instructions in this case as you weigh the evidence, and disregard neither without proper reason." And in the next instruction it told them that it was the duty of the jury, if they could reasonably do so, to reconcile conflicts in the evidence so as to believe all the testimony of all the witnesses. A direction to weigh the instructions as they weighed the evidence, given in connection with the direction to reconcile conflicts in the evidence so as to believe all the testimony, if they could, amounted to a limitation of the constitutional right of the jury to determine the law and the facts. The language of the Constitution (Art. 1, § 19) is that "in all criminal cases *144
whatever, the jury shall have the right to determine the law and the facts." And while it is the duty of the court to give instructions as to the law of the case, it is error to give instructions in criminal cases which seek to bind the consciences of the jury by imposing restrictions not imposed by the Constitution, in conflict with its express provisions. Schuster
v. State (1912),
In Blaker v. State (1892),
Appellant asked an instruction that "the defendant is presumed to be innocent until proven guilty beyond a reasonable doubt, and this presumption prevails until the close of the trial, and 9. you should weigh the evidence in the light of this presumption, and it should be your endeavor to reconcile all the evidence with this presumption of innocence, if you *145
can." The instruction, as asked, correctly declared the law.Farley v. State (1891),
Other questions discussed by counsel may not arise when the case is again tried.
The judgment is reversed, with directions to sustain appellant's motion for a new trial.